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« Justice For Sale? | Main | Debating Same-Sex Marriage »

Michael Winship: Two Legal Foes Unite to Fight -- for Same-Sex Marriage

(Photo by Robin Holland)

Below is an article by JOURNAL senior writer Michael Winship. We welcome your comments below.

"Two Legal Foes Unite to Fight -- for Same-Sex Marriage"
By Michael Winship

Watching this week's "health summit" in Washington, with both sides barely repressing the urge to turn the Blair House event into the Potomac version of mixed martial arts cage fighting, was discouraging. To get a little peace and quiet I was tempted to switch to ESPN and search for an hour of the world's greatest soccer riots. At least they make better theater. And there are better-defined goals.

But just when you think that liberals and conservatives will never see eye to eye on anything in this country, there comes an alliance that transcends partisan and ideological lines and takes your breath away. The two powerhouse lawyers who fought each other all the way to the Supreme Court to decide whether Al Gore or George W. Bush would become President are at it again, but this time they're fighting on the same side to defend marriage equality - same-sex marriage - as a constitutional right.

Former Bush Solicitor General Ted Olson and liberal attorney David Boies are in the middle of a case that, win or lose, they expect will wind up at the Supreme Court, just like Bush v. Gore. The former adversaries are united in support of core American values - diversity, equality and tolerance. They've become key players in one of the most important civil rights trials of the last decade, a pivotal legal action that could change contemporary society, but which has escaped the attention of much of the country.

In May 2008, California joined Massachusetts to become the second state in the union to sanction gay marriage. But opponents launched a movement and succeeded in getting on the ballot a voter initiative to overturn that decision - Proposition 8. While the rest of the nation focused on the presidential race between Barack Obama and John McCain, millions of dollars poured into California for or against Proposition 8. In fact, after Obama/McCain, it was the year's second most expensive political campaign.

On Election Day, Proposition 8 passed by a 52-48 margin. Voters rejected same-sex marriage and ordered the state constitution amended to define marriage as the union between one man and one woman. In 2009, the California Supreme Court upheld the amendment's constitutionality. But David Boies and Ted Olson filed a legal challenge in Federal court on behalf of two same-sex couples - two men, two women - each of whom had been denied the right to marry.

The trial began in January at the Federal district courthouse in San Francisco. No video of the proceedings was released to the public, but you actually can see reenactments created by two ingenious Los Angeles filmmakers who used transcripts, other reporting and a cast of professional actors to recreate each day's statements and testimony. Go to their Web site at www.marriagetrial.com.

My colleague Bill Moyers spoke with David Boies and Ted Olson on the current edition of public television's BILL MOYERS JOURNAL. He asked them why they had united in the Proposition 8 case. Boies said, "One of the things we have in common on this issue is respect for the rule of law, respect for civil rights, respect for the Constitution... It's not a Republican or Democratic issue. Conservatives and liberals alike want to keep the government out of our personal conduct - want to keep the government out of the bedroom."

"We're not advocating any recognition of a new right," Ted Olson said. "The right to marry is in the Constitution. The Supreme Court has recognized that over and over again. We're talking about whether two individuals should be treated equally under the equal rights protection clause of the Constitution - the same thing the Supreme Court did in 1967, [when it] recognized the constitutional rights of people of different races to marry."

Boies added, "There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for... If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a Constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, 'This is a democracy. But it's also a democracy in which we protect minority rights...' What the Constitution says is that every citizen gets equal protection of the law. It doesn't just say heterosexuals."

Asked by Moyers about criticism that a loss could set the marriage equality cause back for years, Ted Olson replied that a legal challenge of Proposition 8 was unavoidable: "We felt that if a challenge was to be brought, it should be brought with a well-financed capable effort by people who knew what they were doing in the courts. Secondly, when people said, 'Maybe you should be waiting, maybe you should wait until there's more popular support,' our answer to that was, 'Well, when is that going to happen? How long do you want to wait? How long do you want people to be deprived of their constitutional rights in California?'

"... People told Martin Luther King, 'You may lose.' He said, the battles for civil rights are won ultimately by people fighting for civil rights."

Testimony in the Federal case has been completed but the trial goes on. Final arguments will take place in the coming weeks. Then the judge will make his ruling, perhaps sometime this spring. Whichever side loses will no doubt appeal.

Of the four plaintiffs - Paul Katami and Jeff Zarillo, Kristin Perry and Sandra Stier - Ted Olson said, "They put a real face on discrimination...If the American people would just listen to what the plaintiffs and the other experts said in this case, they will understand so much more the damage that's done to people... Your relationship doesn't count, and you don't count - you know, that is demeaning. And if the American people see that, they'll see the difference."

David Boies noted, "You could not listen to these people and not be moved by their stories. You could not listen to these people and not be moved by their love for each other, by their desire to be married. By the harm, the pain that they were being caused by not being able to do what we take for granted, which is to marry the person we love."


Please note that the views and opinions expressed by Michael Winship are not necessarily the views and opinions held by Bill Moyers or BILL MOYERS JOURNAL.


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Comments

It is becoming widely accepted by some large states but also by fertility doctors allowing them their rights to begin a family. Why discriminate?
However Ronnie, above, does have valid points? then what is the problem with marrying your kin. the definition of marriage is between a man and a woman. tough issues

I think that we should pull back are troops from the war in Afganistan.

I think that we should pull back are troops from the war in Afganistan.

Lori P wrote, in part, "I myself was not for gay marriage until I saw this episode and realized that marriage IS a fundamental right afforded to, yes even gay couples, under our constitution."

Since "corporaions" also have "rights" as a "person"

granted them AFTER the Constitution was crafted

I guess the next logical step is having a marriage ceremony for - oh, let's say Pfizer and Wyeth...?

In a lot of fiery posts, it was NOT

"hatred and prejudice"

so much as people just being totally grossed out by TMI - too much information...."...just not that into you..." is REAL among the gay and the straight, no?

Throughout ALL of my grammar school years, I existed in a social millieu where the Mom-Dad organizing unit of civilization did not require legal re-interpretation.

And it still doesn't.

I was so shocked to read such comments fueled by hatred and prejudice in every post I just read. This makes me so sad. I find it hard to believe that they were even written by people who watch Bill Moyer's Journal. I myself was not for gay marriage until I saw this episode and realized that marriage IS a fundamental right afforded to, yes even gay couples, under our constitution. I'm glad I saw this episode and was able to see that my gay neighbors and co-workers do not deserve to be treated as second class citizens because of their inability to marry and truly be contributing members of our comunities.

Correcting my own post which was done in haste on the road :-)

I believe I've proved my point how "the gay" follows its own rules that don't include any taboos or any politeness and respect to those who aren't that into you.

It's FAIR to ask what the taboos would be in a same sex marrigae - what is "the gay" doing to IMPROVE marriage FOR THE WOMAN!

I have the copy of that New Yorker issue and when I get back, I'll definitely let you know which one it is.

How DAFT of someone to PRESUME that thousands of centuries of human evolution is under question and OPEN to a "gay" re-write just because there is no WRITTEN cave drawing to refer to in regards to male/female relationship evolution achieving the MONOGAMOUS marriage situation!

People all possess a "POWER" gene, so to speak. Humanity seems to group itself into "birds of a feather flock together".

The TWO camps of POWER seeking are simple:

Those who seek power over the FREE WILL of others

vs.

Those who seek POWER over poverty, disease, basic challenges of nature, etc. using their natural talents to cure, create and bring beauty and goodness through the USE OF POWER.

"The Gay" is CLEARLY about POWER over others to FORCE others to accept their lack of POWER over themselves!

Monogamous marriage between a man and woman is about the POWER to create.

There won't be a gay man Prez before there is a REAL WOMAN Prez - that's my Vegas bet.

Posted by: Anna D

If you don't like marriage for same sex people, don't marry someone of the same sex. Why are you so obsessed with us?
Posted by: KevinVT

Posted by David C.
Could it be maybe that your us is mostly interested in themselves and that is why they are Homo? Maybe they are not into getting past the ten year old boys’ impression that girls are silly or the ten year old girls’ impression that boys are dorks. There are lots of excuses for going Homo but very few reasons. It is not a rational choice.

Anna: "I believe I've proved my point how "the gay" follows its own rules that don't include any taboos or any politeness and respect to those who aren't that into you."

You have proved no such thing. When someone espouses crazy made-up theories and cites non-existent history in order to deprive me of rights, I think I am justified in reacting dismissively.

If you don't like marriage for same sex people, don't marry someone of the same sex. Why are you so obsessed with us?

Anna, please go back on your meds.

There is no such New Yorker article and no such historical period.

Posted by: KevinVT

I believe I've proved my point how "the gay" follows its own rules that don't include any taboos or any politeness and respect to those who aren't that into you.

I have the copy of that New Yorker issue and when I get back, I'll definitely let you know which one it is.

People all possess a "POWER" gene, so to speak. Humanity seems to group itself into "birds of a feather flock together". The TWO camps of POWER seeking are simple:

Those who seek power over the FREE WILL of other people

Those who seek POWER over poverty, disease, basic challenges of nature, etc.

vs.

The POWER to cure, create and bring beauty and goodness with the USE OF that POWER.

"The Gay" is CLEARLY about POWER over others.

There won't be a gay man Prez before there is a REAL WOMAN Prez - that's my Vegas bet.

Anna, please go back on your meds.

There is no such New Yorker article and no such historical period.

After this, I'm done - "just not that into you"

The New Yorker went in depth exploring the long-buried HISTORICAL FACTS about what happened in another era when the homosexual men of that century DOMINATED the political scene...2005 issue, I think...? But call your gay buddies to get you a copy out of the archives...VERY interesting article...

Brown-nosing (sucking up to POWER - tyranny or other) is not what many people consider an ideal "life-style"....

The longer the yaddayadda goes on, the more INTERESTING it is to me

that the TRUTH

of hundreds of thousands of years of evolution of

MARRIAGE FOR WOMAN'S BENEFIT

is what you political sirens BELIEVE you can "talking points" away by telling me to go take my "medication"...

I agree that "the gay" has ALWAYS been a high-school like click that excludes those who are NOT like themselves...allowing them to "marry" is not going to end discrimination among human beings...

A Christian Cult, the Quakers, congregated in their church every week. After a reading, the floor opened up to anyone who wanted to share something with everyone that was "spirit led"...meaning it was something good, TRUE and beautiful FOR the "soul".

Anyone who thinks convincing people that they should get over the ancient "taboo" of anal sex

and give gay men the "right" to raise baby girls

well, that ain't something "Quakers" would say was "spirit" inspiration.

The last desperate attempt by propagandists - throw in the GAY Marriage wedge

Placing bets on how long the spunking hooligans will come here to spew every day...?

Mr. Bill Moyers, Good Morning.

I saw your interview with Ted Olson and David Boises and now take a moment to read each and every word, please. I am humbling myself to write this letter to you. It does not suit my temperament, class and dignity. I wish I would have never written this letter you. Here is something for your academic interest. How about cases of reverse discrimination by homosexuals against heterosexuals? I took up part time accounting work with local county government in South Florida. I had perfect test scores and yet I was held down at low paying part time job for three years by majority gay/ lesbian staff and management demanding from women and men in minority like me with traditional family values to show some solidarity to gays and lesbians by wearing certain colors/styles, consuming certain foods on certain days and adopting certain mannerism or risk being treated as pariah. There was open and gross financial mismanagement by homosexuals. Money was openly changing hands and payrolls being padded. I was twice approached by gay/lesbians staff to sign petition for legalizing the gay marriages/unions. I refused to comply with demands like four others. I first emailed in Aug 2004 to management and wrote in dignified manner “people not in compliance with god’s design were discriminating against men and women with traditional family values”. I am not prejudiced against gays and lesbians. Not, at all. I climbed up to Commission in Nov 2006. I met with Commission and County administrator on Nov 27, 2006. I convinced the commission and I was assured it will be investigated. After return from the meeting I had encounters with staff and I was clearly told that “only white and/or homosexuals get promotions here. It does not matter if your scores are 100 out of 100 or high 90’s. Now get the hell out of here.” I was livid and I emailed on Dec 24, 2006 and asked one poignant question “are homosexuals above the law”? “White, more covert than overt homosexuals were discriminating against traditional men and women with family values”. Is Mr. Obama, incidentally The President listening? I waited for too long to report. I had always sensed it but written it in discreet manner earlier. I did not imply all whites were homosexuals. I meant only white and/or homosexuals prevailed there. Commission found evidence and legitimacy in my complaint and promoted me to another division in Jan 2007. In 2008 elections homosexuals forced commission promulgate ordinance barring commission’s intervention ever in administration. I called commission’s aide to remove it from 2008 ballot to register protest and she furiously refused.

In new division my immediate covert, gay supervisor and a self-proclaimed butch made my life miserable for refusing to comply with their demands & to sign the petition for legalizing gay marriage one more time. They were pressuring me to process the paperwork illegally so they along with their cronies could get their kickbacks from the vendors. Things became worst as I climbed up to highest level in Feb 2009; and emailed the hostilities and theft. Again I waited for too long. Recently while overseas on approved leave; my leave was rescinded and I was declared AWOL and terminated confiscating all my benefits including unemployment and retirements. Again I did not imply all whites were gays and lesbians. Only those who were; prevailed. Management and staff have misconstrued it to galvanize support for them and disdain against me. We all have heard of McCarthyism. Very few attorneys who are willing to fight the rich government are demanding huge retainer which is an issue for me. Can you please help me? I will give all my winnings to any one or cause you support except for job and lost wages. Can you please help me expose this crime and immorality? I will be thankful. Thank you.

Ps; The County encourages and awards the contracts to minority business owners and vendors. Just a little thought to that money stolen! Is that money ending up in the streets of Afghanistan and Iraq? I have sordid details of depths these homosexuals can sink down to.

America needs revolution like 1979 in Iran and 1989 in China to save itself. Otherwise these homosexuals like many other problems such as Sarah Palin will wipe America off the map. I am sure Ted’s and David’s latent tendencies are spurring them to fight for gays and lesbians cause. (Every one noticed Ted’s amorous gaze at David during the entire show?). My plausible pursuit of happiness is to debate with Ted, David and Bill Moyers on TV and to get this letter posted on your blog as it is. Can someone let me have that happiness? Now, please read this to see how the homosexuals are above law in certain parts of the country and the crimes they can get away with because they are in majority. In fair democracy unfair majority wins.

Kindly don’t let this seemingly long letter discourage you from reading each word. Ted Olson has not had the courage to return my email for more than a month. I watched you with Ted Olson & David Boise on Feb 26th, evening at channel 2. Any initial shock and reaction to my anger and resentment that you might have will evaporate when you finish reading this in its entirety.

It was total shameful that so called prominent lawyers like Ted Olson and David Boises have taken up such a immoral and sinful cause to put it certainly on its way to Supreme Court. What scientific evidence and expert testimonies they were referring to in support of their arguments. Compare it with everyday some pharmaceutical companies being sued for pedaling the dangerous medicine with approval from FDA. If America can allow such spectacle of American immorality for the world to watch; then what gives us the right to dictate Taliban in Afghanistan what they can do or can’t in their country? Why Talibans can’t demand decency and decorum from their women in traditional patriarchal society? We in America stopped demanding that from women here in the name of feminism (thanks to corporate greed; glorified as capitalism) and have seen the consequences of it in terms of all social evils like, high divorce rates, pedophilia, juvenile problems, drug-addiction, homosexuality, low population growth so much so that we have to continuously import people just like commodities from the world; the scales of social justice is already so much tilted in favor of women, gays and children that normal men are at complete disadvantage in American society. That is why we have mail-order brides in US but no mail-order groom shops here. Ever wondered why Iraq war has already outlasted WWII by a year as of March 2010 and in March 2010 Afghanistan war will become the longest American war? Who are fighting for us? Men want to rush home to hot cooked meal with woman waiting at the table.

My theory is; weak and immature men always turn into gays and women into lesbians, usually more covert than overt, in matriarchal society. Patriarchal societies, as god intended, do not have such problems. We all have little Sherlock and Freud in us. Logically, only weak men could have turned over the reins of family affairs to women that is how and why America became untraditionally matriarchal society. There is enough resistance against gay-marriage in America but for some reasons those resistant people are not united just as much because it is so embarrassing issue for dignified and classy people to unite against and launch an open war. Ted and David talked about not hearing one good reason for opposing gay marriage from people during the trial. I will give you one right off the bat. How a normal man or woman is going to respond to question often asked on any social occasion “are you married”? Followed by whom are you married to? Others have raised scenarios of polygamy, bestiality and many more? If I was invited to debate with Ted and David I assure you I will prove them wrong. I watched and noticed the Ted’s amorous gaze at David. I normally would not notice that but since it was a moment on TV, I was unaware of this show while surfing, I glued myself down to watch it with some unexpected revelations and observations and I got one. I think most will agree that Ted and David are doing it with some agenda, money, 15 minutes fame or whatever else? Do they need more money or fame? Their latent tendencies are spurring them? Sincerely; Mr. Ash (954)943-5253 ashinwicworld@yahoo.com

Kevin...
From what I have seen, heard and read; the twenty first century is a bust. It has all the signs of end times. One way or the other; Mother nature has a way of causing the extinction of cancerous entities. Right now we are on a course of self-destruct.
David

Sorry. The Supreme Court has already ruled on this in Lawrence v Texas.
Posted by Kevin

Posted by David
The Supreme Court is no longer a meaningful institution. It is no more than a political tool.
The corruption goes on...
I refer to what people will not tolerate despite the law. Some things are moral presidents that can not be legistated and if they are there is all hell to pay.

"Homosex is not acceptable behavior in our society and never will be"

Sorry. The Supreme Court has already ruled on this in Lawrence v Texas.

Get with the program and come into the 21st century.

I'm amazed people who make these claims know what a television is, much less watch PBS!

The one thing I agree with you on Anna is that it's one big bowl of crazy, and you're the one who brought it to the potluck!
Posted by: KevinVT

Posted by: David C.
Sad but true; your post is in a cracked pot...
All of the "rights" you mentioned have turned out badly.
Most women are worse off then they were before they got the vote. Now they have to work for a living, get shot at in the military and raise children on their own.
Most slaves were freed to live in poverty and the working people all became wage slaves. Even the white collar workers have to wear their neck tie that replaced the slave collar.
All of the children can go to the school of their choice with whom ever. The down side is that the education is inferior and there are few jobs available that are not below the poverty level pay.
Homosex is not acceptable behavior in our society and never will be. Marriage is for a man and a woman. Anything else is bogus.
We need to improve everyone's life with a higher standard of living. Meaningful change is not the result of idealistic semantics.





Anna D is at it again:

"Yes, indeed, the Supreme Court is all about protecting the MINORITY's UNEARNED rights

and they can't figure out any other way to do that, it seems, other than to TAKE away the "rights" that the MAJORITY earned FOR THEMSELVES over thousands of years of becoming civilized..."

Rights do not have to be EARNED.
Granting rights to minorities does not mean taking away rights from the majority. When women got the right to vote, men were not banned from polling stations. When blacks got the right to go to public schools alongside whites, white people were not barred from the schoolhouse door. When gays and lesbians get the right to marry, straight people will not have to get "domestic partnerships" because they can't get a marriage license.

The one thing I agree with you on Anna is that it's one big bowl of crazy, and you're the one who brought it to the potluck!

Posted in part by D.C. Eddy
"We need to get things under control before the train goes off the track."

You may want to read this article by "Market Watch"

http://finance.yahoo.com/banking-budgeting/article/108943/8-reasons-wall-street-loses-another-20-in-this-decade?sec=topStories&pos=6&asset=&ccode=


JUMPING JAHOSEPHATS!
WE HAVE A MAJOR DISASTER IN THIS COUNTRY AND WE HAVE A BUNCH OF DEVIANTS TRYING TO UNDERMINE MOTHER NATURE AND THE FAMILY UNIT.

We have families living under bridges, two unjust wars, a failing economy, a morally corrupt government and sociopathic corporations.
We need to prioritize our concerns and do what ever it takes to get back on the right track. We know what the wrong track is and need to make the necessary changes.
The first thing we have to do is get sufficient money back into the system that is "ear marked" to pay for the necessary changes.
We need to get things under control before the train goes off the track. Then, we can get on with tuning the system.
Without sufficient funds the market cannot reach its optimal balance. The result will be that the economy will crash. The ensuing chaos will be worse than country wide level 10 earthquakes.

MJA wrote, in part, "Marraige is the binding of love with our blind, inequitably unjust, and monetarially corrupt legal system of attorneys, judges and courts. Why would anyone want to fight to subject their love to something as ugly as that."

Bringing up the whole "gay marriage" WEDGE just proves how MEDIA

is assisting the Supreme Court in gaining "control" back after over 70% of USA citizen's thought that THEIR slam-Hillary movie decision was WRONG.

So now the machievellian game begins - if 70% of the people are against "gay marriage", then doesn't that just prove how backwards the people are?

Yes, indeed, the Supreme Court is all about protecting the MINORITY's UNEARNED rights

and they can't figure out any other way to do that, it seems, other than to TAKE away the "rights" that the MAJORITY earned FOR THEMSELVES over thousands of years of becoming civilized...

Still a big bowl of crazy...

I'm ALL for getting my FREEDOM back from the whole kit and kaboodle...how to do that without declaring a JUST WAR?

I'm definitely open to suggestions...

Marraige is the binding of love with our blind, inequitably unjust, and monetarially corrupt legal system of attorneys, judges and courts. Why would anyone want to fight to subject their love to something as ugly as that.
Freedom is the other Way.

=
MJA

Heterosexuals used the word 'marriage' first, & the meaning, I believe, is that biologically a male & a female must unite to form a baby, so back off homosexuals-get your own word for your defination does not fit the science!
Female+female or male+male homosapiens can't reproduce.

Vets missing limbs are dissed by the VA while financial "BRAINS' get millions in bonus money AND they LOST Billions!
NOW that is Pervision I might think these lawyers sink their teeth into!

STUPID IDIOTS!

President Obama said McCain is NOT revelant and he said my primary vote could NOT be counted---
Thanks President NOT!

From Candidate CHANGE to President NOT!

Obama NO-MATTER-WHATS are charter members of the Stupid Idiots Club.

Billy Bob Florida

I'm experiencing problems with seeing your site properly in the newest version of Opera. It's fine in IE and Firefox however.Have a really great day.

The Bill of Rights are only words put together for the purpose of defining rights we are born with and should be guaranteed. Just WORDS with great meaning.
The two lawyers you had on your show could probably argue that a nudist couple has the right to walk into any restraunt and be served.
The Bill of Rights increases our awareness of being born free through words put together to have meaning and absolutes. These freedoms we are born with from beginning of mankind; languauge (being able to speak), written word, thought and tradition. Not written into the Bill of Rights is lifestyles, and like a nudist, I believe as many do, gays and lesbian behavior is a lifestyle. We should not be protecting all lifestyles under the premise that we live under a Bill of Rights. We should protect, not reclassify, not redefine or change the meaning of some words: A husband is a man. A wife is a women. The act of mating or reporduction happens between a man and a women. A man and women calling themselves husban and wife are cosidered a married couple in the meaning of the words and laws written for this understanding. I still believe lesbians and gay lifestyles are un-natural and should never be in the catagory of a marriage.

If we start with the premise that marriage is a word that defines the union of a man and woman, then the word marriage is inappropriate for the union of two people of the same sex.

If the argument for a marriage between people of the same sex is that not allowing it is discrimination, then are we discriminating when we don't allow those within an immediate family to marry (incest)? Or is incest only a religious taboo rather than a civil taboo?

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